In National Association for the Advancement of Colored People (NAACP) v. U.S. Department of Homeland Security, the NAACP filed a lawsuit against the administration after it sought to cancel temporary protected status (TPS) for Haiti. 1:18-cv-00239-MJG (D. Md. Jan. 25, 2018). TPS is a temporary form of relief granted to immigrants who cannot return to their home country due to ongoing armed conflicts, environmental disasters, or epidemics. The NAACP, along with Haitian organizations, alleged that the Department of Homeland Security (DHS) violated the Fifth Amendment’s due process clause when it rescinded TPS for Haitians. In the recent trial that took place, the NAACP argued that “the termination of TPS for Haiti was based on President Donald Trump’s ‘categorical and defamatory assertions about all Haitians, which the Haitian TPS recipients were given no opportunity to challenge.’” The lawsuit alleged that the president’s statements, coupled with the fact that the conditions in Haiti that gave rise to the original January 2010 TPS designation continue to exist, demonstrate a discriminatory motive.
Ramos, et al. v. Nielsen, also challenged the president’s motives in terminating TPS. 321 F. Supp. 3d 1083 (N.D. Cal. 2018). In October 2018, the U.S. District Court for the Northern District of California enjoined DHS from implementing and enforcing the decision to terminate TPS for Sudan, Nicaragua, Haiti, and El Salvador. The court ruled that:
the administration was guided by racism—not a sober consideration of the facts on the ground—when it canceled Temporary Protected Status designations for El Salvadoran, Haitian, Sudanese, and Nicaraguan escapees from political and natural disasters.
While the TPS injunction in the Northern District of California is a small step in challenging the president’s discriminatory motives and public declarations, the president, claiming sweeping authority over immigration, has invoked national security as a shield against any discriminatory public statements on immigration he makes. The decision in NAACP v. DHS is forthcoming. The forthcoming opinion will determine whether the same deference to immigration and national security that the U.S. Supreme Court upheld in Trump v. Hawaii, 138 S. Ct. 2392 (2018), will operate to uphold the president’s decision to rescind TPS.
Somali Immigrants Have Had the Highest Immigration Arrest Rate under the Trump Administration
The Pew Research Center found that even though there has been a drop in the overall numbers of removals, the removal of African nationals from the United States increased in 2017. Somali, in addition to Libya, Chad, and Sudan, were African countries on the president’s travel ban list.
In 2017, Somali nationals experienced the highest rate of removal. Last year, a class action lawsuit Ibrahim v. Acosta, 326 F.R.D. 696 (S.D. Fla. 2018), was filed on behalf of 92 Somali men and women who were being subject to deportation. The Miami New Times euphemistically called their deportation flight “Deported by ICE on a Slave Ship.” Somalis say they were shackled and beaten for almost two days, including over 20 hours when the plane sat on the runway in Dakar, Senegal. The lawsuit cited U.S. asylum law and the Refugee 1952 Convention, which the United States ratified in 1980. The Convention forbids the removal of individuals to countries where they would face a likelihood of persecution or torture. Under the lawsuit, a preliminary injunction was granted staying the removal of the Somali nationals until they were provided an opportunity to apply for reopening of their deportation orders and relief under the Refugee Convention.
Administration’s Migrant Protection Protocols᾿ Impact on Immigrants of African Descent in the “Migration Caravan”
On January 28, 2019, the administration, through an Executive Order and emergency federal regulations, instituted a policy where asylum seekers must wait in Mexico to apply for asylum in the United States. Notice of Availability for Policy Guidance for Implementation of the Migrant Protection Protocols, by the Homeland Security Department on 01/28/2019, FR Doc. 2019-03541 Filed 2-27-19. The policy implements into law unwritten policies that this administration has been informally enforcing at the border.
This past December, two students from Vanderbilt Law School, where I direct the Immigration Practice Clinic, traveled with me to the Mexican border at Tijuana to volunteer to provide legal assistance to refugees. Refugees waiting to apply for asylum at the border included Central Americans as well as a significant number of Haitians and migrants from African countries. The last day I was there, I led a team of lawyers providing consultations to women and children asylum seekers at a shelter. In particular, we assisted a woman (whose identifying information has been omitted to preserve confidentiality) from a West African country.
This West African country is known for its political instability, which has caused forced migration due to unrest, torture, and abuse by security forces, including in military and unofficial detention facilities. The West African asylum seeker was raped by government security forces who were responding to unrest. She immediately researched visa-free countries to which she could apply, got on a flight to South America, and, through the generosity of many people, made her way to the U.S.-Mexico border. When she arrived at the U.S. border in November 2018, prior to the implementation of the administration’s Migrant Protection Protocols, she could not walk up to the border and apply for asylum. There was a list controlled by refugees with oversight from Mexican migration authorities, “Los Beta.” Los Beta would approach the U.S. border each day and obtain a number from U.S. Customs and Border Protection on how many asylum seekers they were taking that day. She had a three-month wait in the women’s shelter before she could even approach the border.
As I counseled her about the process, what to expect when she approached the border, and to expect to be detained during her asylum application, she began to cry. She had experienced a triple trauma—in her country of origin, migrating to the United States, and the shock of not finding any protection when she reached the border.
This woman’s story demonstrates the direct impact of the Trump administration’s policies and the operation of once informalized structures now formalized through the Migrant Protection Protocols. The administration’s policies bypass the INA’s established protections that provide a right to apply for asylum and prevent the removal of individuals facing persecution in accordance with the Refugee Convention to which the United States is a signatory.
Civil Rights and Immigration
At different times and in differing degrees in the history of the United States, the law has functioned to perpetuate tiered personhood based on race or ethnicity. The concept of personhood is “a placeholder for deeper concepts that ground our [society’s] moral intuitions about human rights.” A “person” is defined as any being whom the law regards as capable of rights and duties. Thus, personhood rights are those rights granted regardless of citizenship status. While the Fourteenth Amendment provides that all persons are entitled to equality under the law, this constitutional requirement can be bypassed, essentially by defining certain immigrants as non-persons based on differences between the dominant and subordinate groups.
This administration’s statements coupled with its immigration policies operate as more than just a proscription on who can immigrate to the United States. The discriminatory statements and implementation of those statements have reinforced a tiered system of personhood.
We must be aware, as Martin Luther King Jr. stated, that we are all tied together in an “inescapable network of mutuality” that binds all of our stories together. In her dissent in the travel ban case, Justice Sonia Sotomayor made an analogy between the federally sanctioned internment of Japanese Americans in concentration camps in 1942 and cautioned:
By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another.
Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.
Trump v. Hawaii, 138 S. Ct. 2392, 2448 (2018). In examining past and current immigration policies, we must pay attention to immigration at the intersection of race and how the law can act to subordinate multiple groups.
The present-day targeting of immigrants of color demonstrates a need to overhaul and rebuild immigration system so that individuals who contribute and participate in the United States daily can live here lawfully. This means examining how fear and exclusion have operated within the system to exclude immigrants of color and examining practices that are not aligned with our obligations as signatories to the Refugee Convention, the U.S. Constitution, or the Immigration and Nationality Act.